dissenting.
For the reasons following I respectfully dissent.
The majority downplays essential facts which when fully illumined, cast a favorable light on the action of the trial court requiring affirmance of its judgment.
Article X sections 16-24 (commonly referenced as Hancock), adopted by the people in 1980 as amendments to the Missouri Constitution, have as their central purpose, placing a lid on government taking by tax, license or fees without prior voter approval, and a correlative lid on governmental spending (though for legitimate governmental purposes) within limits prescribed by these amendatory sections. Buchanan v. Kirkpatrick, 615 S.W.2d 6 (Mo. banc 1981). In this case the City of Perryville in bygone years acquired lands for the construction and maintenance of its streets. These are public streets on public lands maintained by the city for the benefit of the public at large, and any person may use the streets, subject only to the usual safety regulations, for public travel. In 1987 and 1988, the city adopted resolutions for the improvement of Pine Street where plaintiff Zahner lives and whose property abuts the street. On November 16, 1988, the City Board authorized construction of curbs and gutters on portions of Pine Street and adopted an ordinance levying special assessment on the abutting property owners. Pursuant thereto, special tax bills were issued against plaintiffs property for payment of construction costs. In these matters, Perryville, a city of the fourth class, followed the financing scheme permitted in Chapter 88, RSMo 1986, entitled “Public Works and Special Assessments Therefor,” and particularly Sections 88.700, “Street Improvement — declaration of necessity — taxpayers’ protest (fourth class cities),” Section 88.703, “Street Repairs — cost, how paid (fourth class cities),” and 88.707, “Certain Street Improvements — protest, how heard and determined.” By these statutes the legislature permitted cities of the fourth class to pay for such improvements in the following manner:
Any of said improvements to be paid for by such city may be paid for by said city out of the general revenue funds if the council so desires, but all such work and improvements shall be paid for with special tax bills unless the proceedings of the city for the same specify that payment will be made out of the general revenue funds of said city.
Section 88.703 (emphasis added). In this case, as noted by the majority, the city chose the “tax bill” method of funding, by which the city clerk issued tax bills, payable to the contractor during the work. These “tax bills” were available for levy upon the land of plaintiff, who paid this “special tax,” used to defray this public expense, under protest.
As specified in Section 88.703, RSMo 1986, penalties are provided:
for failure to pay such special tax within a given time, and any such tax bills ... shall constitute a lien upon the property liable therefor until paid. (Emphasis added.)
It cannot be seriously questioned that the legislature recognized and denoted these assessments as a special tax, and further that until paid the tax bills “shall bear interest of eight percent per annum from the date of issue.” Section 88.703. The statutes are specifically couched in traditional “tax” language, employing the term “special tax” and providing the accepted means of “liens” upon the land for the tax assessed and penalties for late payment. *861Payment of the “tax” assessment was understandably “protested” by plaintiff in the usual manner for protecting his rights as a taxpayer. .
The legislative scheme of Chapter 88 in 1980 and prior years did not require voter approval for any new tax that might be imposed by the city under Sections 88.700, 88.703 or 88.707, but all this changed in 1980 by Hancock, for in that year the constitutional amendment added the requirement of voter approval for such new taxes, regardless how laudatory the purposes for which this new revenue was to be expended. The majority erroneously concludes that the extracting of money by force of law from a landowner, to be used for a public street, is not a tax, citing Tax Increment Financing Commission of Kansas City v. J.E. Dunn Construction Co., 781 S.W.2d 70 (Mo. banc 1989). There this Court avoided application of Hancock to the Missouri Real Property Tax Increment Allocation Redevelopment Act, Sections 99.800 to 99.865, RSMo 1986, by holding that:
First, it makes no difference to the resolution of this point whether PILOTS are taxes as Dunn contends, or not. The Constitution does not prohibit a city from levying an existing tax without voter approval; instead, it prohibits a city from increasing the current levy of an existing tax without voter approval. It is the tax levy against which the constitution’s prohibition is measured, not the tax itself,
Dunn, 781 S.W.2d at 74 (emphasis added), and that the record there disclosed no increase in the tax levy, hence this statement:
Second, Dunn does not argue, nor could it on this record, that the City has increased its tax levy. Indeed, the record shows that the PILOTS at issue are the product of the application of the current levy to increased assessed valuations. The evidence does not show any change in the tax levy.
Id. at 74-75.
Though in the case sub judice this “tax” is described and referenced in the statute as a “special tax” and though as stated in Roberts v. McNary, 636 S.W.2d 332, 335 (Mo. banc 1982), that a tax is “a pecuniary charge imposed by a legislative or other public authority upon persons or property for public purposes: a forced contribution of wealth to meet the public needs of a government,” and though in this case it is assessed as a new tax upon realty, for which “tax bills” were issued, and private property was subjected to liens of the tax bills, the majority nevertheless concludes it is not a “tax” within the meaning of Hancock. The majority asserts that because the city fathers believed “a special benefit [accrued] to property owners as a result of street improvements” and that the payments from the landowners were for a “specific purpose and not intended to be paid into the general fund to defray public needs or governmental expenditures,” the money paid by plaintiff was somehow “not a tax.” In this, I submit, the majority errs; it misses the point of Hancock. The money paid by plaintiff was a new tax never before assessed against his land. It was imposed by the government for improvement on public land. Special assessments are levies used to confer benefit upon the parcels charged for the improvements; in contrast, the improvements here are by the city upon its own property for use by the public. The fact that the city in the exercise of its public power chose to improve its streets at a place where the street happens to abut the land of plaintiff does not somehow magically transform the city tax into something other than a tax and thus slide laterally from Hancock’s protective cover, which was adopted by the people to provide such protection. This is quite unlike the purchase money in Dunn by which the municipality acquired private property and resold it to private investors and which (whether or not it was a tax) did not increase the current levies and was thus beyond the reach of Hancock. Here in effect the levy was increased, for a new tax was added to provide improvement to publicly owned and maintained city streets. Further, the fact that the monies were collected by the city through its “bill collector” (the contractor who did the work) cannot be said to transform the monies from “tax *862payments” into something different or not contemplated by Hancock. The constitutional amendment to Article X can not be so neatly avoided by a public entity which it seems to me is patently included within the clear language and avowed purposes of the amendment. The fact that the city does not directly collect the tax but instead decrees the levy, issues the tax bills and is empowered to impose liens upon the private property of landowners cannot alter the fact that a tax is a tax.
This tax, unlike the “PILOTS” of Dunn, is not for the purchase of private property but is for the direct and sole purpose of improving public streets.
While it is important that Hancock, which requires approval by the qualified voters of the city before a new tax may be imposed, affords real protection for property owners threatened with such tax, the Hancock protection is but an additional fail-safe mechanism against imposition of such new taxes. The original safeguard found in § 88.700 remains. That section provides that a fourth-class city which proposes that such “a special tax ... be levied” must first publish notice of its resolution and may only “cause the improvements to be made” if:
a majority of the owners of the property liable to taxation therefor, residing in the city at the date of the passage of such resolution, shall not, within ten days from the date of the last insertion of the resolution, file with the city clerk their protest against [such improvements].
Thus, property owners enjoy the shelter of both the Constitution and the statutes as to such special taxing ordinances.
I would affirm the judgment of the trial court.